ML20151M207
| ML20151M207 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 07/25/1988 |
| From: | Goldberg J HOUSTON LIGHTING & POWER CO. |
| To: | NRC OFFICE OF ADMINISTRATION & RESOURCES MANAGEMENT (ARM) |
| References | |
| FRN-53FR24077, RULE-PR-170, RULE-PR-171 53FR24077-00025, 53FR24077-25, AC80-2-28, NUDOCS 8808040391 | |
| Download: ML20151M207 (4) | |
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- EPOSED Rult The Light (53 Fa 24077) my company
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P.O. Box 1700 llouston, Texas 77001 (713) 228 9211 Ilouston Lighting &: Power g
g July 25, 1988
'h ST-HL-AE-2747 M
File No.:
G03.11, G03.15 10CFR170 U. S. Nuclear Regulatory Commission Attention:
Document Control Desk Washington, DC 20555 South Texas Project Electric Generating Station Units 1&2 Docket Nos. STN 50-498, STN 50-499 Comments on Proposed Revision of Part 170 and Part 171 Fee Schedules Houston Lighting & Power Company hereby submits commants in response to the proposed rule, entitled "Revision of Fee Schedules," issued on June 27, 1988 and published at 53 Fed. Reg. 24077 (1988).
The proposed rule would amend the fee schedules found in Parts 170 and 171 of the Commission's regulations.
Our comments are directed to certain aspects of each part.
Part 170 Our principal objection to the proposed revisions of Part 170 relates to the removal of the current ceilings on the collection of fees.
As the Cornission recognizes, these ceilings "vere established by the Cormission at the request of the regulated industry as a means of assigning predictabilJty as to what the final costs of a regulatory service would be."
53 Fed. Reg. at 24679. We submit that the reasons for assigning predictability are as compelling todny as they were when the Commission imposed the ceilings.
Indeed, because of the proposed increase in the agency-wide professional staff-hour rate, considerations of predictability more than ever require the retentien of ceilings.
Part 171 Ve have several objections to the proposed revisions of Part 171 of the Comission's regulations.
First, the proposal does not remove the most fundamental of the defects which we and others have identified concerning the Commission's present system for assessment and collection of annual fees under Part 171.
The Commission continues to believe that there ha6 been delegated
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to it authority to assess and collect annual fees for "generic" regulatory services benefiting broad "classes" or "types" of power reactor licensees.
0000040391 000725 PDR PR 170 53FH24077 PDH yj C NL.88.203.02
.\\ Subsidiary of Ilouston Industries incorporated
linuuon Ughting & Power Comp.un ST-HL-AE-2747 File No.:
G03.11, G03.15 Page 2 53 Fed. Reg, at 27078, 24080-82.
It does not feel compelled to identify any special benefits rendered to individual licensees, as the Ccmmission believes that such a matching of special benefits and fees is not required by Section 7601 of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"),
as amended by Section 5601 of the Omnibus Budget Reconciliation Act of 1987
("OBRA").
In the Commission's opinion, the requirement that fees match "individually identifiable services" is applicable only to Part 170 fees assessed under the authority of Title V of the Independent Offices Appropriation Act of 1951. _Id. at 24078.
j Ve expressed our strong disagreement with the Commission's interpretation of its statutory authority to collect annual fees in comments filed on our I
behalf on July 16, 1986, when the Commission first proposed to add Part 171 to its regulations. When the Commission issued a final rule providing for the recovery of the "generic" costs of regulating classes of licensees, 51 Fed.
Reg. 33244 (1986), we sought judicial reviiv.
That effort resulted in the split decision in Florida Power & Light Co. v. United States, Nos. 86-1512, et al.
(D.C. Cir. May 13, 1988), upon which the Commission now relies.
- However, we are seeking review of that decision in the Supreme Court.
In the meantime, we continue to express our belief that amended Section 7601 of COBRA, when i
read in the context of the body of judicial decisions construing similar user I
fee statutes, compels the Commission to first identify specific services benefiting individual licensees before proceeding to assess annual fees intended to recoup the costs associated with these services.
In brief, the L
l proposed rule relies upon legal judgements which we questioned in our July 16, l
1986 comments and have continued to question in the on-going litigation over the legality of the Commission's annual fee legislations. Ve therefore I
incorporate herein the views which we have expressed in the comments and in the litigation.
The Commission reads Section 5601 of OBRA as removing the 33 percent
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ceiling found in Section 7601 of COBPA and inserting in its place a direction i
i that the agency collect at least 45 percent of its budget during fiscal years 1988 and 1989.
%3 Fed. Reg. at 24078.
The commission reasons that as its fee collections now can exceed the percentage target found in the governing statute, there no longer is any need to provide refunds if this target is I
exceeded.
Id. at 24078, 24084. We submit the Commission is in error in reading the 45 percent referred to in OBRA as a floor rather than a ceiling.
j In adopting its view, the Commission failed to consider the single best explanation of the unclear language of OBRA, namely, the statement of Senator j
[
Simpson on the floor of Congress clarifying the intention of Congress in enacting the provision.
133 Cong. Rec. $18685 (daily ed. Dec. 21, 1987).
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NL.88.203.02
4 lhnnton i.ighting & Power Comp.un ST-HL-AE-2747 File No.:
G03.11 G03.15 Page 3 Senator Simpson explained that the "contorted" and "convoluted" language of Section 5601 is attributable to the arcane Congressional Budget Office "scoring" process and the "crediting" of user fees to certain Congressional committees.
Id at 18685-87.
Stripped of unnecessary complexities, Section 5601 of OBRA "authorizes the NRC to collect increased user fees in an amount u2 to 45 percent of the agency's budget for 2 fiscal years--fiscal years 1988 and 1989."
Id at 18685 (empharis added).
The legislative history of Section 5601 therefore clearly suggests that the Commission is mistaken in treating the 45 percent referred to in the legislation as a floor rather than as a ceiling.
Regardless of whether the Commission.'s correct or incorrect in its belief that it legally can recover the "generic ' costs of regulating classes of licensees, it must take action to ensure that the aggregate of its fee collections does not exceed 45 percent of l
the NRC's 1988 and 1989 fiscal year budgets.
The obvious method of ensuring this result is to retain the refund mechanism found in Part 171.21 of the Commission's annual fee regulations.
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\\.d/klik J. H. Goldberg Group Vice President i
Nuclear l
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NL.80.203.02 i
I Ilomion I.ighting & l'ower Compam ST-HL-AE-2747 File No.: G03.11, G03.15 Page 4 CCI Regional Administrator, Region IV Rufus S. Scott Nuclear Regulatory Commission Associated General Counsel 611 Ryan Plaza Drive, Suite 1000 Houston Lighting & Power Company Arlington, TX 76011 P. O. Box 1700 Houston, TX 77001 George Dick l
U. S. Nuclear Regulatory Commission INPO Washington, DC 20555 Records Center 1100 Circle 75 Parkway Jack E. Bess Atlanta, Ga. 30339-3064 Resident Inspector / Operations c/o U. S. Nuclear Regulatory Commission Dr. Joseph H. Hendrie P. O. Box 910 50 Be11 port Lane Bay City. TX 77414 Be11 port, NY 11713 Don L. Garrison Resident Inspector / Construction c/o U. S. Nuclear Regulatory Commission 3
P. O. Box 910 Bay City, TX 77414 J. R. Newman, Esquire Newman & Holtzinger, P.C.
1615 L Street, N.W.
i Washington, DC 20036 R. L. Range /R. P. Verret Central Power & Light Company P. O. Box 2121 l
Corpus Christi, TX 78403
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R. John Miner (2 copies)
Chief Operating Offi er j
City of Austin Electric Utility 721 Barton Springs Road
.l Austin, TX 78704 R. J. Costello/M. T. Hardt City Public Service Board P. O. Box 1771 j
San Antonio, TX 78296 I
l Revised 06/16/88 NL.DIST l
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